Editorial: Blame Congress, not court, for high drug prices

The Supreme Court heard arguments on a case Monday that puts a massive spotlight on ways to lower the cost of medicine for people.

But, regardless of how the high court rules, the main responsibility rests with Congress to fix this problem, and it has steadfastly refused to buck a major lobbying force to do so.

At issue is whether big pharmaceutical corporations can be stopped from paying competitors to delay releasing generic versions of brand-name drugs. The tactic, called "pay for delay," greatly harms those needing prescriptions because it can add to their annual drug bills.

It also puts another layer onto an already convoluted process and can deny faster entry of generic drugs into the marketplace.

These deals typically occur when generic companies file a challenge at the Food and Drug Administration, seeking to upend the 20-year-monopoly that brand-name drugs get with a patent.

Pharmaceutical companies spend large sums of money researching and developing new drugs; they should have some exclusive rights to sell those drugs to recoup their investment. But a 20-year monopoly is far too long and should be shortened.

Over the years, drug companies have used a number of questionable tactics to retain their monopoly, including cutting deals with generic drug manufacturers to kill any competition. Generic companies often end their legal challenges by taking accepting financial settlements instead of bringing their lower-cost drugs to the market.

The Obama administration argues such agreements are illegal if they're based solely on keeping the generic drug from being made available to the public.

Solicitor General Donald Verrilli Jr. points to what is at stake for consumers, saying that once a generic drug gets to compete, the price of the drug can drop by as much as 85 percent.

During the George W. Bush administration, Congress did put prescription drugs under Medicare, the primary public health coverage used by about 40 million seniors. And President Obama effectively pushed through the Affordable Care Act, which will guarantee some type of coverage to all Americans.

But neither of these landmark pieces of legislation did much in dealing with the fact that generic equivalents of brand-name drugs could save consumers considerable amounts of money if allowed to the market faster. Obama pushed for such changes in earlier versions of the Affordable Care Act but the provisions ultimately were dropped during negotiations.

Possible improvements to the health care system are apparent. Federal officials overseeing Medicare, for instance, should be able to negotiate lower prescription drug prices and improve access to less expensive generic drugs. But Congress, beholden to the high-priced lobbying of pharmaceutical companies, has refused to act. Instead of paving the way for more competition, Congress has allowed the powerful pharmaceutical industry to hide behind patent laws that have been clearly abused.

The high court will have to take into consideration antitrust laws and many other issues in deciding the particular case before it. It may, indeed, rule that what the pharmaceutical companies are doing is perfectly legal. If so, it's because Congress has failed the American people and has shown no political will to take on of the pharmaceutical companies. Until it does, there is little hope for true cost containment when it comes to prescription drugs.

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Editorial: Blame Congress, not court, for high drug prices

The Supreme Court heard arguments on a case Monday that puts a massive spotlight on ways to lower the cost of medicine for people.

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